Bergeron v. Peyton

• Decision Date: 06 April 1900
• Citation: 106 Wis. 377,82 N.W. 291
• Parties: BERGERON v. PEYTON ET AL.
• Court: Wisconsin Supreme Court

106 Wis. 377

82 N.W. 291

BERGERON

v.PEYTON ET AL.

Supreme Court of Wisconsin.

April 6, 1900.

Appeal from superior court, Douglas county; C. Smith, Judge.

Action by Charles Bergeron against B. Murry Peyton and another. From a judgment in favor of plaintiff, the first defendant appeals. Reversed.Ross, Dwyer & Hanitch and George B. Hudnall, for appellant.

Crownhart & Foley, for respondent.

CASSODAY, C. J.

This action was commenced May 23, 1898, against the appellant and one F. E. Grant to recover damages for false imprisonment, May 19, 1898. The defendant Peyton answered by way of admissions, denials, and counter allegations. At the close of the trial of the issues thus formed, the jury returned a special verdict to the effect: (1) That the plaintiff was imprisoned by both defendants, acting jointly, May 19, 1898; (2) that such imprisonment was by both defendants; (3) that such imprisonment began after the defendant Peyton's first demand for his money had been refused by the plaintiff at the bank; (5) that, before the plaintiff was so imprisoned, he had not formed the purpose of appropriating the overpayment to his own use; (6) that at the time the money was paid to the plaintiff at the bank he did not know he was getting the sixty-odd dollars; (7) that the defendants jointly engaged in the imprisonment of the plaintiff at the commencement of such imprisonment; (8) that, assuming that the plaintiff's imprisonment began shortly after he returned to the bank with the defendant Grant, they assessed his damages at $100; (10) that the purpose of the defendants in imprisoning the plaintiff was solely to compel or induce him to repay the $43 overpaid. From the judgment entered upon such verdict for $100 damages and $64 costs the defendant Peyton brings this appeal.

The circumstances under which the alleged arrest was made are to the effect that on the day named the plaintiff, having received from one Magloire Beaudoin a time check, payable about a month afterwards, for work performed by him, which check stated that the plaintiff's work came to $67.30, “less Camp acct. $5.20,” and “less cash, $40.00,” leaving the “balance due $22.10,” presented the same to the appellant Peyton, at his bank, known as the Superior Bank, in West Superior, to be discounted at 5 per cent., as had been customary; that Peyton, by some inadvertence failing to observe the payments made on the account and deducted in the check, and that the check only called for $22.10, cashed the same on the supposition that it called for $67.30, thus paying to the plaintiff about $64 instead of about $21; that the plaintiff did not then know, as the jury found, that he had received about $43 more than he was entitled to, but did discover the fact at a saloon, named, four or five blocks from the bank, about half an hour after he left the bank; that, soon after, the plaintiff met the defendant Grant, who was looking for him, and who took him to the bank; that Peyton then demanded the repayment of the $43, which the plaintiff, who had been drinking, repeatedly refused to repay, and stated that he would keep the money; that the plaintiff was then taken by the defendant Grant, who was a police officer, to the magistrate, and subsequently he was taken to jail.

Error is assigned because the court refused to grant a nonsuit or direct a verdict in favor of the defendants. There is no claim that the defendant Grant received any process against the plaintiff, or that any process was issued against him, prior to the time when he and Grant went to the office of the municipal judge, after they had been together at the bank. The plaintiff testified to facts from which the jury were at liberty to find, as they did, that he was imprisoned at the bank. If he was so imprisoned, then such imprisonment was without process. If he was imprisoned without process, and such imprisonment was unjustifiable, then it was false imprisonment. Murphy v. Martin, 58 Wis. 276, 16 N. W. 603;Gelzenleuchter v. Niemeyer, 64 Wis. 321, 25 N. W. 442;King v. Johnston, 81 Wis. 578, 51 N. W. 1011. The question recurs whether such imprisonment without process was justifiable. Manifestly, it devolved upon the defendants, if they could, to prove facts justifying such imprisonment. Allen v. Wright, 8 Car. & P. 522; Michell v. State, 12 Ark. 50. It is a very singular fact--if it be a fact--that the plaintiff did not know at the time that he received from the bank $43 more than he was entitled to. But he testified that he did not, and the jury evidently believed him. He admits, however, that he knew it before he was at the bank the second time; and that, with knowledge of that fact, he refused to pay back the money when demanded. Such refusal to pay back the money was a conversion of the money. It is true that the plaintiff received the money with the consent of Peyton. But the consent was only given by reason of a mistake on his part, which the plaintiff had discovered and admitted before he refused to pay back the money. Was such conversion of the money a crime? This court held many years ago that a conversion by a servant to his own use of property of the master put in his charge was larceny, and that the felonious intention to so convert need not have existed in the servant's mind at the time of receiving the property into his charge. State v. Schingen, 20 Wis. 74. Our statute declares, in effect, that a bailee of money or property who shall “fraudulently convert the same to his own use * * * shall be guilty of larceny.” Section 4415, Rev. St. The same section provides that, if the property so converted shall exceed the value of $20, such bailee may be punished by imprisonment in the state prison; and another section of the statutes makes such an offense a felony. Section 4637, Id. It has been held in New York that “one who receives from another money to which he knows he is not entitled, and which he knows has been paid to him by mistake, and conceals such overpayment, appropriating the money to his own use, with intent to cheat and defraud the owner thereof, is guilty of larceny.” Wolfstein v. People, 6 Hun, 121. To the same effect, People v. Call, 1 Denio, 120;Hildebrand v. People, 56 N. Y. 394;Phelps v. Same, 72 N. Y. 334, 362;Welsh v. Same, 17 Ill. 339;Murphy v. Same, 104 Ill. 528;People v. Martin, 116 Mich. 446, 74 N. W. 653. The more important question is whether the circumstances were such as to justify the imprisonment without process. As held in Allen v. Wright, supra, it was not only incumbent on the defendants to show that the crime had been committed, “but that the circumstances of the case were such that they, or any reasonable person, acting without passion or prejudice, would fairly have suspected the plaintiff of being the person who had committed it.” 8 Car. & P. 522. To the same effect, Cahill v. Fitzgibbon, 16 L. R. Ir. 371....